| Kearns v Thilburg |
| 2010 NY Slip Op 06518 [76 AD3d 705] |
| August 31, 2010 |
| Appellate Division, Second Department |
| Richard K. Kearns et al., Respondents-Appellants, v MaryThilburg, Appellant-Respondent. |
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In an action, inter alia, for a judgment declaring that the plaintiffs may legally tie boats to thenortherly side of a dock built along the extension of their northerly property line into SterlingCreek, without interference from, or financial obligation to, the defendant, the defendant appeals,as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Mayer,J.), dated May 18, 2009, as denied that branch of her cross motion which was for summaryjudgment on the fourth counterclaim in her amended answer, and the plaintiffs cross-appeal, aslimited by their brief, from so much of the same order as denied that branch of their motionwhich was for summary judgment on the first cause of action.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the defendant's cross motion which was for summary judgment on the fourthcounterclaim in her amended answer seeking a declaration, in effect, that the plaintiffs areinterfering with her riparian rights and to enjoin them from placing any objects in Sterling Creekin front of her property is granted, the order is affirmed insofar as cross-appealed from, uponsearching the record, summary judgment is awarded to the defendant dismissing the first causeof action, and the matter is remitted to the Supreme Court, Suffolk County, for furtherproceedings on the remaining cause of action and counterclaims, and the entry thereafter of anappropriate declaratory judgment in accordance herewith.
The plaintiffs are owners of a commercial marina and the defendant is currently the lifetenant of a residence on property formerly owned by her that shares a common boundary withthe marina. The two properties both front upon navigable tidal waters known as Sterling Creek(hereinafter the Creek). The plaintiffs have a dock, which lies entirely in front of their propertyin the Creek along the extension of the plaintiffs' northerly property line, and the defendant'ssoutherly property line. The plaintiffs routinely keep a boat of a paying customer tied to thenortherly side of their dock beyond the high-water mark in front of the property occupied by thedefendant. The plaintiffs concede that the boat encroaches 15 feet into the defendant's 40-footfrontage on the Creek.
In their first cause of action, the plaintiffs seek a judgment declaring that they may[*2]"legally tie boats to the northerly side of their dock" withoutinterference from, or financial obligation to, the defendant. In her fourth counterclaim, thedefendant seeks a contrary declaration and injunctive relief preventing the plaintiffs from tyingboats to the northerly side of their dock. The plaintiffs moved, inter alia, for summary judgmenton their first cause of action, and the defendant cross-moved, among other things, for summaryjudgment on her fourth counterclaim.
The owner of uplands on a tidal, navigable waterway possesses riparian rights, consisting ofthe right to "reasonable . . . access to the water for navigation, fishing, and suchother uses" (Tiffany v Town of Oyster Bay, 234 NY 15, 21 [1922]; see City of New York v Gowanus Indus.Park, Inc., 65 AD3d 1071, 1073 [2009]). Riparian rights include "the right to make[such] access a practical reality" by building a pier, dock, or wharf (Town of Oyster Bay vCommander Oil Corp., 96 NY2d 566, 571 [2001]; see Schuss v Palmisano, 51 AD3d 766, 768 [2008]; Bravo vTerstiege, 196 AD2d 473, 475 [1993]; Town of Hempstead v Oceanside YachtHarbor, 38 AD2d 263, 264 [1972], affd 32 NY2d 859 [1973]). The riparian rights ofan uplands owner are limited, however, to the waters in front of that owner's property and do notextend to the frontage of the adjoining parcel (see Schuss v Palmisano, 51 AD3d at 768;People ex rel. Gratwick v Commissioners of Land Off., 202 App Div 240, 242 [1922];Huguenot Yacht Club v Lion, 43 Misc 2d 141 [1964]). Moreover, an uplands owner doesnot acquire the right to use or access the water fronting a neighboring parcel simply because itmay have been the first to build a dock along the lateral extension of the parties' shared propertyline into the water (see Muraca v Meyerowitz, 11 Misc 3d 1061[A], 2006 NY Slip Op50329[U] [2006]; Huguenot Yacht Club v Lion, 43 Misc 2d at 141; Fairchild vUnion Ferry Co., 121 Misc 513, 516 [1923], affd 212 App Div 823 [1925],affd 240 NY 666 [1925]).
Applying these principles here, the plaintiffs failed to establish their legal right to continueto use the northerly side of their dock by mooring a boat in front of the property occupied by thedefendant (see Schuss v Palmisano, 51 AD3d at 768; People ex rel. Gratwick vCommissioners of Land Off., 202 App Div at 242; Muraca v Meyerowitz, 11 Misc3d 1061[A], 2006 NY Slip Op 50329[U] [2006]; Huguenot Yacht Club v Lion, 43 Misc2d at 141). Accordingly, the plaintiffs failed to establish their prima facie entitlement tojudgment as a matter of law on their first cause of action, and we need not consider thesufficiency of the defendant's papers submitted in opposition (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]). Further, upon searching the record, we awardsummary judgment to the defendant in connection with the plaintiffs' first cause of action,declaring that the plaintiffs do not have a right to continue to use the northerly side of their dockby mooring a boat in front of the property occupied by the defendant (see CPLR 3212[b]).
In light of our determination that the defendant is entitled to summary judgment inconnection with the plaintiffs' first cause of action, on the cross motion the defendant wasentitled to judgment as a matter of law on her fourth counterclaim, inter alia, declaring, in effect,that the plaintiffs are interfering with her riparian rights by submitting evidence that theplaintiffs' boat obstructs 50% of her frontage on the Creek, interfering with her ability to utilize asignificant portion of her foreshore for any purpose. In opposition, the plaintiffs conceded thatthe boat projected 15 feet into the defendant's frontage of 40 feet, and the plaintiffs failed tosubmit evidence showing that this significant encroachment of more than one third of theforeshore did not interfere with the defendant's riparian rights (see Muraca vMeyerowitz, 11 Misc 3d 1061[A], 2006 NY Slip Op 50329[U] [2006]; Huguenot YachtClub v Lion, 43 Misc 2d at 141; Fairchild v Union Ferry Co., 121 Misc 513, 516[1923]; cf. Schuss v Palmisano, 51 AD3d at 768). Accordingly, the Supreme Courtshould have granted that branch of the defendant's cross motion which was for summaryjudgment on her fourth counterclaim.
The Supreme Court properly declined to consider the plaintiffs' contention that thedefendant's first, second, and third counterclaims should be dismissed, since the plaintiffs raisedthat contention for the first time in their reply papers before the Supreme Court (see Djoganopoulos v Polkes, 67 AD3d726, 727 [2009]; Crummell v AvisRent A Car Sys., Inc., 62 AD3d 825, 826 [2009]).
Since this is, in part, a declaratory judgment action, we remit the matter to the SupremeCourt, Suffolk County, for further proceedings on the plaintiffs' remaining cause of action andthe counterclaims, and thereafter for the entry of a judgment, inter alia, declaring that theplaintiffs are interfering with the defendant's riparian rights and that the plaintiffs do not have aright [*3]to continue to use the northerly side of their dock bymooring a boat in front of the property occupied by the defendant (see Lanza v Wagner,11 NY2d 317, 329 [1962], appeal dismissed 371 US 74 [1962], cert denied 371US 901 [1962]). Skelos, J.P., Angiolillo, Dickerson and Leventhal, JJ., concur.